Tuesday, April 08, 2014

Cohan: Lax on Prosecutorial Ethics

As many readers of the blog already know, today marks
publication of the revisionist book on the lacrosse case, written
by Vanity Fair contributing writer William D. Cohan. Joe Neff’s N&O
article captured the essence of Cohan’s argument: “something happened” (the
author won’t say precisely what), and myriad new Nifong assertions pass either unchallenged
or virtually unchallenged. The sources upon which Cohan builds his case are a convicted liar (Nifong), the convicted liar’s
attorney (Ann Petersen), and a convicted murderer (Crystal Mangum).

For those who have seen or heard Cohan’s pre-publication
writings or statements: he has been far blunter in these forums than he was in
the book, where his preferred approach is argument through
inference or insinuation. Though he told Neff that he believes “something
happened,” he never comes out and says as much in the book (though any sentient
reader would recognize this is what he believes). Though he told Cosmopolitan that the defense attorneys manipulated
the media, he makes no such direct allegation in the book (though, again, any
sentient reader could infer from his sneering tone what he thinks about the
defense attorneys, who he did not interview). And though in a recent tweet, he tauntingly referred to “those Duke lax bros,” he avoids such juvenile language in his publication.

The very rare occasions in the book
when he offers his analysis directly, in his own voice, give a sense of the issues (such
as lax enforcement of ethical rules against prosecutors) about which Cohan feels particularly
strongly.

Much of the book (hundreds of the more than 600 pages)
consists of summaries of previously published remarks, news
articles, op-ed columns, or blog posts. How Cohan frames this material is
telling, but the repackaged summaries themselves contain nothing new.

As for fresh material: Cohan interviewed Nifong (at length),
one of Nifong’s attorneys, Ryan McFadyen (but no other member of the 2006 team),
Bob Steel (briefly), and Mangum (briefly). He appears to have interviewed anti-lacrosse
extremist Peter Wood (though no other member of the 2006 Duke faculty). He purports
to have interviewed an unnamed senior Duke figure, who conveniently provides him with quotes that conform to his overall take on Duke. He might
have interviewed Ben Himan (since he doesn’t use endnotes, it’s hard to tell). He
doesn’t appear to have interviewed anyone else. He doesn’t appear to have had
access to the discovery file, though again it’s hard to tell.

Sections of the book are interesting, in a perverse way, as
an insight into Nifong’s still-delusional nature. But the book as a whole is
seriously flawed, and in some respects simply malicious.

Over the next several days, I’ll discuss various aspects of
the book, beginning with its two most disturbing elements: the author’s extraordinary tolerance of prosecutorial ethical violations; and, tomorrow, his almost casual willingness to
cast doubt on innocent people. (I’ll also have a formal review of the book
forthcoming in the May edition of Commentary.)

-----------------

Three types of ethical issues ultimately ended Mike Nifong’s
career as an attorney: improper pre-trial public statements, improperly
withholding exculpatory DNA evidence, and improperly lying to a judge in open
court. Cohan either minimizes or outright excuses all three. Assuming that he
believes that all prosecutors and not just Nifong should be held to the
standards that the book defends, Cohan’s vision of prosecutorial power is a
terrifying one—and one considerably out of step with the bien pensant Manhattan culture that Cohan in other ways seems to
reflect.

Rule
3.6(a) of the North Carolina State Bar holds, “A lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be disseminated
by means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter.” There can
be no serious question that Nifong violated this rule. In his pre-primary
publicity crusade, he labeled the lacrosse players “hooligans.” He compared
their alleged crime to a cross-burning. On MSNBC, on live TV, he “demonstrated”
the way in which Mangum was allegedly choked, even though Mangum had given no
such description. During a primary debate, before any indictments occurred, he
proclaimed, “I’m not going to allowDurham’s view in the
minds of the world to be a bunch of lacrosse players at Duke raping a black
girl fromDurham.”
Though he cut back on his public remarks after he secured the first two
indictments, he continued to speak out.

Since Cohan can’t deny that Nifong violated the letter of
the rule, he seeks to either excuse Nifong’s conduct or contextualize the misconduct
out of existence.

The Bar found Nifong not merely guilty of the offense but
guilty for an improper personal purpose (in Nifong’s case, exploiting the case
to rally the African-American vote he needed to win the primary). In addition
to Nifong’s comment to Jackie Brown about the case providing him with a million
dollars’ worth of free publicity, strong circumstantial evidence supports the
Bar’s conclusion. A private poll showed Nifong trailing Freda Black; and Nifong’s
campaign fundraising had dried up to such an extent that he had to keep the campaign
afloat through a personal loan.

Cohan dismisses the prospect of a political motivation; he
lets Nifong attack the poll’s credibility and doesn’t even mention the fundraising
woes. Instead, Cohan provides an alternative explanation for ex-DA’s misconduct,
reproducing—without challenge—Nifong’s preposterous suggestion that his
repeated public condemnations were designed to get the lacrosse players to
cooperate with police. To bolster this claim, Cohan produces (p. 123) an alleged conversation
between Nifong and a local bar owner—given name, “Joe”—who allegedly had a
public safety background and who allegedly told Nifong that “everything is shut
down . . . I’ve never seen a situation involving anything over here where
nobody’s talking.”

Cohan offers no evidence that he ever attempted to speak
with “Joe” to verify Nifong’s extremely convenient “recollection.”

Assume, for the sake of argument and despite all available
evidence, that Cohan’s presentation is accurate. So what? The Bar rule doesn’t
contain an exception for when a prosecutor thinks he can encourage alleged
witnesses to step forward. And some of Nifong’s improper statements occurred after indictments had taken place, when
the ex-prosecutor’s “witness” excuse couldn’t conceivably apply.

For instance, just before
the 2006 election, Nifong asserted, “If
a caseis of such significance
that people in the community are divided or up in arms over the existence of
that case, then thatin and of itself is an indication that a case needs to be tried”;
and then
claimed that dismissing the case “does nothing to address the underlying
divisions that have been revealed. My personal feeling is the first step to
addressing those divisions is addressing this case.”These
statements (which do not appear in Cohan’s book) revealed an almost complete
lack of understanding of a prosecutor’s appropriate role in trying a case.

For good measure, Cohan turns to the Nifong team to offer a selective-prosecution defense of the
disgraced ex-district attorney. From Nifong: the “word on the street” was that the Bar was “looking
for a prosecutor to make an example of.” (p. 438) Nifong attorney Ann Petersen amplified: “There
were two or three [earlier] cases that came to the state bar that were clear
cases of prosecutors who had gone way over their responsibilities and ethical
standards, and nothing could be done, for various reasons, or nothing was done.” (p. 575) Who were those prosecutors? Did they issue statements anything like
Nifong’s? It’s impossible to analyze the selective prosecution claim when
Nifong’s attorney (Petersen) and Nifong’s apologist (Cohan) provide no specific
cases for comparison.

----------------------------

While Cohan minimizes the ethical problems associated with
Nifong’s remarks, he launches a full-throated defense of Nifong’s decision producing
a report that concealed exculpatory DNA evidence. A reminder: under Brady, prosecutors must turn over all exculpatory
evidence to the defense. According to North Carolina law, prosecutors must turn
over all (not some) results from a DNA test done by a nontestimonial order, if
the defendants don’t object to the NTO. And under North Carolina's 2004 open-file discovery law, prosecutors must produce “a report of the results of any [not some, or many, or most] examinations or tests conducted by the expert.”

Violating both Brady and differing elements of North Carolina law, Nifong turned over a report that didn’t include the full
test results—it excluded evidence of potential matches with multiple unidentified
male DNA. Nifong knew of these results, and never claimed otherwise—except, of
course, when he lied about them in open court to Judge Osmond Smith. And if
Brad Bannon hadn’t figured out what Nifong was up to, there’s no reason to
believe the exculpatory evidence ever would
have been turned over. In the “Perry Mason” moment of the case, Dr. Brian
Meehan admitted under oath that the exclusion of this material in the report was
an “intentional limitation” arrived at between Nifong and him.

In perhaps the book’s most remarkable passage, Cohan aggressively defends Nifong on this point (p. 556): “Except for the fact that Nifong should
have turned that information over to the defense sooner, why was it important
that the so-called exculpatory evidence was not turned over? The truth was, it
didn’t matter [emphases added], and even if Nifong had turned the
information over sooner, he was still basing his entire case . . . on Mangum’s
testimony. The charge was a red herring.”

Nifong himself didn’t go this far during his testimony
before the Bar, when he instead asserted that his not turning over the material
wasn’t too problematic because DNA results indicating potential matches with
multiple unidentified males wasn’t “specifically exculpatory.” (There’s an interesting legal concept for
unethical prosecutors eager to avoid Brady.)
Cohan positively gushes, “This was truly the heart
of the matter, although Nifong’s cogent
explanation would likely come too late to save him from his fate.” (p. 557, emphases
added) Even Duff Wilson didn’t maintain that Nifong performed well in the Bar
disciplinary proceeding.

Consider the remarkable nature of Cohan’s conception of
prosecutorial ethics. A minister of justice can deem evidence not specifically exculpatory (whatever that
means) and withhold it indefinitely from the defense—even lie about its
existence in open court—and not be worthy of ethics punishment. Indeed, such a
district attorney can offer a “cogent” explanation that the non-specifically exculpatory evidence
didn’t matter. The items quoted above mark two of the few sections of the book in
which Cohan provides pure analysis, in his own voice—as opposed to summaries or
quoted remarks from other people—about what he actually thinks.

------------------

With the problems caused by the public remarks overstated
and the withholding of the DNA evidence a “red herring,” Cohan concludes that
“Nifong’s five-day state bar trial had all the trappings of a sacrificial slaughter.”
(p. 548) But his defense of the disgraced former prosecutor couldn’t be
complete without addressing the criminal contempt trial.

It would seem that here Nifong had little defense: there’s
no doubt that he lied to Judge Osmond Smith, and there’s no doubt that a
prosecutor lying to a judge in open court constitutes contempt. Unable to
defend Nifong on either the facts or the law, Cohan instead passes on—wholly unchallenged—aspersions
on the character, competence, and integrity of the man who prosecuted Nifong
(Charles Davis) and the judge who found him guilty (Smith). Cohan-through-Nifong
(or is it Nifong-through-Cohan?) has the notoriously tight-lipped Smith
chatting, before the trial, at a cookout on how he planned not only to find
Nifong guilty but to sentence him to 30 days in jail. This item—which Cohan appears
not to have even attempted to check with Smith—allows the book to spin its hero being
sentenced to jail for one day for lying to a judge as somehow a victory for
Nifong.

Given his sweeping attack on the State Bar and Judge Smith,
Cohan might have wondered why they acted as they did. But
there’s no evidence he requested information from them; Nifong’s unverified theories sufficed. Nor, even more
surprisingly, does Cohan appear to have reached out to any academic expert in
prosecutorial ethics to test his perspective, perhaps explaining his willingness to set aside the basic
ethical canon on Nifong’s behalf. And, it should go without saying, the Nifong of Cohan’s imagination is quite different from the real thing, as seen in the recent Darryl Howard exposé by Radley Balko.

Accepted at face value, The
Price of Silence is a bold, even revolutionary, call for weakening ethical
oversight of prosecutors and excusing those prosecutors who run afoul of ethics guidelines. In an era of Tea Party Republicanism, and with liberals
traditionally (though not, far too often, in the lacrosse case) concerned
with protecting civil liberties, I doubt that the book’s message on this issue
will resonate.

14 comments:

The DNA results were exculpatory because they demonstrated that the PCR amplifications were working. IMO they were especially helpful to David Evans' case, inasmuch as he seemed to be the most vulnerable of the three (from the fake fingernail results). The results also cast doubt on Ms. Mangum's credibility. If Cohan cannot acknowledge this, he is being feckless.

Bill Anderson wrote a good rebuttal to the claim that the DNA results did not matter. By the implication of the prosecution, the DL players had amazing forensic skills in avoiding transferring their DNA to Ms. Mangum, despite the fact that DNA can transfer by touch as well as through semen. For example, there are simulated strangulation studies in the forensic literature, although obviously one would have to swab an alleged victim's body in the right place to find the DNA. Then they foolishly left the fingernails in the trash, because that is what the storyline demands. Nifong is not alone among prosecutors in constructing a narrative in which the alleged perpetrators are superhuman in their skills one minute, and complete nitwits the next. The whole thing would be risible, except that real people are still getting hurt by Nifong's misconduct and Cohan's fecklessness.

KC's scholarly, fact-driven undressing of Cohan's "book," is a breath of fresh air that helps off-set the stench flowing from Cohan's distortions, mis-directions, and errors. Of course, this isn't a fair fight -- it's as if KC is playing three-dimensional chess while Cohan flails at checkers. Cohan reveals himself for the utter fool that he is.

I have supported the Innocence Project for many years, including financially.

However, Peter Neufeld's willingness to associate with the O.J. Simpson case was always a mystery to me. Simpson's attorneys made a mockery of DNA science as it applied to that case, with Neufeld's (apparently well-paid) help.

I am curious if Neufeld ever responded to Bill Anderson's letter. He would not, and could not, if Nifong had consulted with him as a potential expert witness.

If Neufeld was in any way associated with Nifong and possible work for the prosecution, I am afraid my world-view of the Innocence Project would be shattered.

I would be like the young Chicago White Sox fan who asked of "Shoeless" Joe Jackson (accused of throwing the 1919 World Series), "Say it ain't so, Joe".

If I were of a mind to defend Mr. Neufeld (which I am not), I would say that most of what he said was very general, consisting of platitudes. He did not seem to be addressing the specifics of the DL case at all. I never saw any subsequent clarification from him.

"The truth is if you speak to crime lab directors, they will tell you that in only a relatively small number of cases is there any DNA evidence," said Peter Neufeld, co-founder and co-director of the Innocence Project, which uses DNA to free people wrongly imprisoned. "In rape cases, there is an expectation of DNA. But like many expectations, often it is misplaced." ABC news

Neufeld was there when Nifong's case needed him.And he didn't clarify or retract or defend the players once he found out the entire facts (if he didn't know them before).And he repeated his remarks three times, to different media.

He provided Nifong the excuse he needed to go on for another year on no evidence.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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